November 26, 2019

On Nov. 2, 2004, Florida voters overwhelmingly approved a proposed constitutional amendment, titled the Patients’ Right to Know About Adverse Medical Incidents. Over 81% of the votes cast on this matter favored this amendment, reflecting the desires of almost 6 million voters.

This constitutional amendment, codified as Article X, Section 25 of the Florida Constitution, states that “patients have a right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.” [1] An adverse medical incident is defined as:

[M]edical negligence, intentional misconduct, and any other act, neglect, or default of a health care facility or health care provider that caused or could have caused injury to or death of a patient, including, but not limited to, those incidents that are required by state or federal law to be reported to any governmental agency or body, and incidents that are reported to or reviewed by any health care facility peer review, risk management, quality assurance, credentials, or similar committee, or any representative of any such committees.[2]

In summary, upon approval of this constitutional amendment, individuals were given the right to access records generated by hospitals or doctors that were related to an incident that caused, or could have caused, injury or death to a patient.

Despite the clear intent of the voters, practitioners representing plaintiffs in medical malpractice cases in Florida have experienced difficulty in obtaining records related to an adverse medical incident, when such records are requested during discovery. The most common objections raised by attorneys representing medical professionals, when faced with a request for these records, are based on Florida statutes that have been abrogated, and the Federal Patient Safety And Quality Improvement Act of 2005.

These efforts to curtail patients’ right to know, for the most part, have been overcome by decisions favorable to plaintiffs, issued by appellate courts, as well as the Florida Supreme Court. Dissatisfied with this precedent, some defendants are now refusing to turn over these records, citing their disagreement with these court decisions, and ignoring the bedrock of our justice system — stare decisis.

This article will explore the above-mentioned efforts to prevent patients from accessing records to which they are entitled under the Florida Constitution, and highlight the dangers in ignoring clear precedent and the will of voters.

Read Time to Respect Florida Law and Patients' Right to Know